I fully concur in that part of the opinion which affirms the judgment as to the defendant, First Security Bank of Utah, Executor of the Estate of A. C. Milner, Deceased.
With respect to that part of the complaint which undertakes to allege that in writing the letter of November 4, 1924, addressed to De Witt Knox and signed by A. C. Milner, Milner acted as the authorized agent of the Milner Corporation and that part of the complaint which undertakes to allege that the Milner Corporation received benefits from the contract of March 16, 1909, sufficient to support an agreement on the part of the Milner Corporation to adopt such contract, it is my opinion that only by a most liberal construction can we say the pleading was good against a motion to dismiss. Nevertheless, I am willing to concur in the holding that the pleading was sufficient and that the motion should have been overruled as to the Milner Corporation.
However, with respect to that portion of the opinion which seems to me to imply that mere proof by the plaintiffs that subsequent to the making of the contract of March 16, 1909, the mining properties were conveyed to the Milner Corporation, would establish that the Milner Corporation received sufficient benefits from the contract of March 16, 1909, to support a binding adoption of such contract by the Milner Corporation, I cannot agree. The recitals of the contract of March 16, 1909, show that all of the consideration moving from Frank Knox was received by A. C. Milner. The facts and circumstances under which the mining properties were conveyed to the Milner Corporation by the heirs or beneficiaries of the estate of Stanley B. Milner are not reflected on this record. It may well be that the Milner Corporation negotiated directly with all such heirs or beneficiaries *120and paid full va'Iue to them for such mining properties and derived no real or substantial benefit 'from the contract of March 16, 1909.
A. C. Milner was obligated to cause the Milner Corporation to enter into a contract with Frank Knox to pay Knox $25,000 out of net proceeds or profits from the mining properties. A. C. Milner was interested in having that obligation on his part discharged by the Milner Corporation adopting the contract of March 16, 1909. His interests were adverse to the Milner Corporation, and that being so, he could not bind the corporation under his general authority as president. See Fletcher, Corporations, Permanent Ed., Vol. 3, § 922 et seq.; Kahn v. Perry Zolezzi, Utah, 226 P.2d 118, 123; Elggren v. Woolley, 64 Utah 183, 228 P. 906.
I think we should leave open for trial on remand the issue of whether the Milner Corporation received any real and substantial benefit from the contract of March 16, 1909, and the issue of whether Milner was duly authorized as the agent of the Milner Corporation, other than by the general authority reposed in him as its president, to write the letter of November 4, 1924.